# /Fli:E"' IN CLERKS OFFICE IIJI'm1MF. COURT, BTATE OFWASHINGTON 

### DATE_AUG 

### 18 2016**~** 

## e..Q.**--CHI~-** EF

# Jusncer-- This opinion was filed for record

## at)(:.~lle

# SAN~~ 

# ' Supreme Court Clerk IN THE SUPREME COURT OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, Respondent,
v. MICHAEL RAY GOSS, Petitioner. ) ) ) ) ) ) ) ) )



### ____________________ 

### ) No. 92274-8
EnBanc

Filed 

### AIJG 113 2016
GONZALEZ, J.-Those charged with a crime have the constitutional right to know "the nature and cause ofthe accusation" made against them andthe constitutional right to notice ofevery fact (otherthan prior convictions) that increases the penalties they face. WASH. CONST. art. I, 

### § 22;Apprendi v. New Jersey, 530 U.S. 466,476, 120 S. Ct. 2348, 147 L. Ed. 2d435 (2000) (quoting_Jones v. UnitedStates, 526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999)). Michael Goss argues that the charging document the State used to accuse him ofsecond degree childmolestation failed to meet this constitutional standard because it failed to allege that the victim was "at least twelve years old," the lower limit ofthe age range for that degree ofthe crime. RCW 9A.44.086(1). We conclude that Goss hadState v. Goss, No. 92274-8 notice ofthe nature and cause ofthe accusation against him and notice of every fact that exposed him to a greaterpenalty. We affirm. FACTS The victim in this case, E.F., is the granddaughter ofGoss's former fiancee. During the years Goss and E.F.'s grandmother were together, E.F. regularlyvisited, regularly spentthe weekend, and regularlyhelped out with yard work and house work. Formost ofthoseyears, Goss and E.F. seemed to get along well andhad a playful relationship. One summer Saturday in 2013, E.F.'s family held a family reunion on the Olympic Peninsula at Port Hadlock, a ferry ride away from where E.F. lived. Despite their earlier friendly relationship, E.F. resisted riding with Goss and wanted nothing to do with him. When Goss "tr[ied] to talkto her
.

. . she would answer himmdely
... , something that wasn't ordinary for her." 2 Verbatim Tr. ofProceedings (VTP) (July 7, 2014) at 290. After the reunion, on the wayto the ferry dock, E.F.'s mother and aunt criticized the way E.F. had treated Goss, leaving E.F. angry and in tears. During the crossing, E.F. stayed in the car while hermother and aunt walked around the ferry. E.F. 's uncle lingeredbehind afterthey left to ask E.F. what was going on betweenher and Goss. After initial reluctance, E.F. told heruncle that Goss had fondled her breasts. Heruncle listened to her

2State v. Goss, No. 92274-8 and persuaded herto tell her mother. Forthe rest ofthe ferry ride, E.F.'s uncle kept himselfbetweenE.F. and Goss. Late that evening, with heruncle at her side, E.F. told hermother what Goss had done. Within the hour, E.F. 's mother calledthepolice. Within a day, E.F.'s mother told her own mother, who immediately ended her relationship with Goss. Goss was initiallycharged with one count of second degree child molestation. Later, a charge ofattemptedthird degree child molestation was added. E.F. testified at trial. She did not name any specific dates, but testified that Goss put his hands under her clothes and fondled herbreasts
once when she was inthe seventh grade. She also described several incidents where Goss attempted to fondle her. Nearthe close ofevidence, the State successfully moved to amend the charges to conform to the time frame E.F. testifiedto at trial. Goss generally denied the events and sought, inhis words, to "'impeach[]'" the victim. 1VTP (July 2, 2014) at 22. His defense focused
on the fact that E.F. had been inconsistent in stating the number oftimes she hadbeen molested, when those molestations occurred, why shehad not
come forward earlier, and whether she had told anyone about the molestationbefore she told heruncle. At no point did Goss suggest that E.F.

3State v. Goss, No. 92274-8
was youngerthan 12 whenthe molestation was alleged to have happened. Thejuryfound Goss guilty ofsecond degree child molestation and not guilty ofattemptedthird degree child molestation. The Court ofAppeals affirmed. State v. Goss, 189 Wn. App. 571, 358 P.3d436 (2015). We granted review oftwo ofthethree issues Goss presented in his petition. 185 Wn.2d 1001, 366 P.3d 1243 (2016). ANALYSIS 

### 1. ADEQUACY OF THE CHARGINGDOCUMENT We review the constitutional adequacy ofcharging documents de
novo. State v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135 (2014) (quoting State v. Siers, 174 Wn.2d 269,273-74,274 P.3d 358 (2012)). When, as here, the adequacy ofthe charging document is challenged for the first time
on appeal and when, as here, no prejudice is alleged, this court will "examine the document to determine ifthere is any fair construction by which the elements are all contained in the document." State v. Hopper, 118 Wn.2d 151, 155-56, 822 P.2d 775 (1992) (citing State v. Kjorsvik, 117 Wn.2d 93, 105, 812 P.2d 86 (1991)); Opening Br. ofAppellant at 15-19 (not alleging actual prejudice). Goss argues that the charging document was fatally defective because it did not allege the victim was at least 12 years old as required, he contends,

4State v. Goss, No. 92274-8 bythe second degree childmolestation statute, RCW 9A.44.086; due process; the SixthAmendment to the United States Constitution; and

### Alleyne
v. UnitedStates,_U.S._, 133 S. Ct. 2151, 2161, 186 L. Ed. 2d 314 (2013). Suppl. Br. ofPet'r at 1-2. The State argues that the fact the victim
was at least 12 years old is not an element ofthe crime ofchild molestation; rather, it is "a ceiling that separates it from a higher degree" ofthe crime. Suppl. Br. ofResp't at 1. We agree with the State that the lower limit ofthe age range is not an element ofchild molestation under either Washington law or the federal constitution. The original 2013 information charged inrelevant part: Count 1 Child Molestation In The SecondDegree Thatthe defendant MICHAEL RAY GOSS in King County, Washington, between or about September 25, 2011 and September 24, 2012, being at least 36 months older than [E.F.] (DOB 09/25/1998), had sexual contact for thepurpose ofsexual gratification with [E.F.] (DOB 09/25/1998), who was 13 years old and not married to and not in a state registered domestic partnership with [E.F.] (DOB 09/25/1998). Clerk's Papers (CP) at 1. Initially, the State allegedthe molestation occurred when E.F. was 13, but after hertestimony, the State amended the information to allege: Thatthe defendant MICHAEL RAY GOSS in King County, Washington, during an intervening period oftime between September 25, 2010 and September 25, 2012 being at least 36 months olderthan
5State v. Goss, No. 92274-8 [E.F.] (DOB 9/25/98), had sexual contact for thepurpose ofsexual gratification with [E.F.] (DOB 9/25/98), who was less than 14 years old and not married to and not in a state registered domestic partnership with [E.F.] (DOB 9/25/98). CP at 67. "[A ]ll essential elements ofan alleged crime must be included inthe charging document in order to afford the accused notice ofthenature ofthe allegations so that a defense can beproperlyprepared," along with the particular facts supporting them. Kjorsvik, 117 Wn.2d at 101-02 (emphasis omitted) (citing 2 WAYNE LAFAVE & JEROLD ISRAEL, CRIMINALPROCEDURE 

### § 19.2, at 446 (1st ed. 1984)). Those the State accuses are not required "to search for the rules orregulations they are accused ofviolating." Id. at 101 (citing State v. Jeske, 87 Wn.2d 760, 765, 558 P.2d 162 (1976)). While the legislature generally defines the elements ofa crime, not every clause in every statute in Title 9A RCW creates an essential element ofa crime. Instead, "'[a]nessential element is one whose specification is necessaryto establishthe veryillegality ofthe behavior charged."' State v. Zillyette, 178 Wn.2d 153, 158,307PJd712 (2013) (internal quotation marks omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). A fact can also become an element ofthe crime because ofthe consequences ofits proof. "[A]ny 'facts that increase the prescribed range

6State v. Goss, No. 92274-8 ofpenalties to which a criminal defendant is exposed' are elements ofthe crime" (except prior convictions under some circumstances). 

### Alleyne, 133 S. Ct. at 2160 1 (quoting

### Apprendi, 530 U.S. at 490); 

### Descamps v. United States,_U.S.
__ , 133 S. Ct. 2276,2288, 186 L. Ed. 2d438 (2013) (quoting

### Apprendi, 530 U.S. at 490). This is not an exhaustive list. 

### See generally State v. Tinker, 155 Wn.2d 219, 221, 118 P.3d 885 (2005). The State accused Goss ofsecond degree molestationunderRCW 9A.44.086(1). That statute says: A person is guilty ofchild molestation in the second degree when the person has, or knowingly causes anotherpersonunderthe age of eighteen to have, sexual contact with another who is at least twelve years oldbutless than fourteen years old and not married to the perpetrator and the perpetratoris at least thirty-six months older than the victim. RCW 9A.44.086 is one ofthree child molestation statutes, each ofwhich designates a different degree ofthe crime depending on the age ofthe victim

1Alleyne does not directly concern charging. InAlleyne, the defendant was convicted of a federal fireanns offense that carried a five year mandatoryminimum ifthe defendant carried a firearm and a sevenyear mandatory minimum ifthat firearm was brandished. 133 S. Ct. at 2155 (citing 18 U.S.C. § 924(c)(l)(A)). Ajuryfound beyond areasonable doubt Alleyne carried a fireann. !d. at 2156. The trial court found by apreponderance of the evidencethat Alleyne brandishedthat firearm and basedhis sentence onthe higher mandatoryminimum. Id. The United States Supreme Court concluded that a fact that "increase[d] [the] sentencing floor
... forms an essential ingredient ofthe offense" and "was an element, whichhad to befound by ajurybeyond a reasonable doubt." Id. at 2161, 2163. We acknowledge that we found otherwise in the context ofindeterminate life sentences for sex offenders in State v. Clarke, 156 Wn.2d 880, 893, 134 P.3d 188 (2006), butthis case does not giveus an opportunityto explore whether Clarke remains good law. UnpreservedApprendi charging defects havebeen heldharmless. See United States v. Cotton, 535 U.S. 625, 627, 632-33, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002). 7State v. Goss, No. 92274-8 and the age difference between the victim and theperpetrator. First degree child molestation requires a victim youngerthan 12 and a perpetrator who is at least 36 months older. RCW 9A.44.083. Third degree child molestation requires a victim younger than 16 and a perpetratorwho is at least48 months older. RCW 9A.44.089. The legislative purpose in dividing the crime into these three degrees is not hard to discern. The legislature has reserved theharshest punishments for those who victimize the youngest children. Goss contends that the low end ofthe age range is an essential element ofthe crime that must be charged and proved and that the three degrees ofchild molestation are analytically separate crimes, not greater or lesser degrees ofeach other. The necessary consequence ofthis position, as Goss forthrightly acknowledged at oral argument, is that a defendant charged with second degree childmolestation would be necessarily acquitted ifthe victim testified at trial she was less than 12. See Wash. Supreme Court oral argument, State v. Goss, No. 92274-8 (July 7, 2016) at 35 min., 34 sec. to 36 min., 24 sec., audio recording byTVW, Washington State's Public Affairs Network, http://www.tvw.org. We find this untenable both as a matter ofstatutory construction and constitutional law.

8State v. Goss, No. 92274-8 Not every clause in a criminal statute creates an element ofa crime. Ward, 148 Wn.2d at 813. Again, '"[a]n essential element is one whose specification is necessaryto establish the very illegality ofthebehavior charged."' Zillyette, 178 Wn.2d at 158 (internal quotation marks omitted) (quoting Ward, 148 Wn.2d at 811). Facts that merely divide a lower degree ofa crime from a higher one will rarely meet this standard. Our opinion in Ward is illustrative. Ward concerned domestic violence statutes that made violations ofa no-contact order a felony under certain circumstances, including when the violation is accompanied by an assault. Ward, 148 Wn.2d at 805 (citing former RCW 10.99.040(4)(b) and 10.99.050(2) (1997)). Among other things, those statutes provided that "'[a]ny assault that is a violation ofan order issuedunder this chapter
. . . and that does not amountto assault in the first or second degree underRCW 9A.36.011 or 9A.36.021 is a class C felony."' Id. at 810 (quoting RCW 26.50.110(4) and citing former RCW 10.99.040(4)(b) (1997); former RCW 10.99.050(2) (1997)). Whileplainly the felony-elevating assault was an element that had to be charged and proved, we found that the statutorylanguage "'does not amount to assault in the first or second degree'" did not establish an essential element ofthe crime. Id. at 806. We looked at the purpose ofthe statute: to ensure that violations ofno-contact orders accompanied by assault

9State v. Goss, No. 92274-8
were punished as felonies. Id. at 813. "The legislature did not need to increase the penalty for first or second degree assault, since in their own right the crimes are class A and B felonies respectively." Id. at 812. The "does not amount to" clause was not a statutory element because it was not necessary for establishing the criminality ofthe act. Id. (citing State v. Azpitarte, 140 Wn.2d 138, 142,995 P.2d 31 (2000)). Similarly, in Tinker, we found that statutory language did not create
an essential element ofthe crime. In Tinker, the defendant was charged with third degree theft under a former version ofthe statute that said in relevant part, "'Aperson is guilty oftheft in the third degree ifhe or she commits theft ofproperty or services which (a) does not exceed two hundred and fifty dollars in value."' 155 Wn.2d at 222 (quoting former RCW 9A.56.050(1) (1998)). The charging document didnot allege a value for the snowboarding pants Tinker allegedly stole. Id. at 220-21. Tinkerunsuccessfully challenged the charging document during the trial for omitting the allegedly essential element ofvalue. Id. at 221. We found that the value ofthe object allegedto be stolen was not an essential element ofthird degree theft; it simply divided the lowest degree ofthe crime from the next higher one. Id. at 222; see also State v. Leyda, 157 Wn.2d 335, 341, 138 P.3d 610 (2006) ("[V]alue is not an essential element ofsecond degree identitytheft and need

10State v. Goss, No. 92274-8 not be alleged in the charging document."); State v. Keend, 140 Wn. App. 858, 870-72, 166 P.3d 1268 (2007) (holding that the statutoryphrase "not amounting to assault in the first degree" is not an essential element ofsecond degree assault). Based on Ward, Tinker, Leyda, Keend, and the overall statutory scheme, we conclude that the "who is at least twelve years old" clause in the second degree child molestation statute does not create an essential element ofthe crime. RCW 9A.44.086(1). The lower age limit (unlike the highest) is not a fact "'whose specification is necessaryto establishthe very illegality ofthe behavior charged."' Zillyette, 178 Wn.2d at 158 (internal quotation marks omitted) (quoting Ward, 148 Wn.2d at 811)_2 Our conclusion is bolstered bythe fact that our Court ofAppeals has repeatedlyheld that the lower age limit is not an element ofanalogous crimes without any corrective legislative response. See, e.g., State v. Smith, 122 Wn. App. 294, 296, 93 P.3d 206 (2004); State v. Dodd, 53 Wn. App. 178, 180-81, 765 P.2d 1337 (1989). The legislature's failure to respond suggests it does not think the lower age threshold in statutes involving sexual contact with children functions as an element.

2 The fact that establishes theveryillegality ofchild molestationis that the victim was underthe age of 16; ifyounger than that, it is a matter ofdegree. Ifthe State wishes to seek a higherpenalty, it wouldbe wise to allege the younger age. 11State v. Goss, No. 92274-8 While criminal statutes are strictly construed, "it is not true that they
are to be construed so strictlythat they wouldbe defeatedby a forced and over-strict construction." State v. Larson, 119 Wash. 123, 125, 204 P. 1041 (1922) (citing UnitedStates v. Morris, 39 U.S. (14 Pet.) 464, 10 L. Ed. 543 (1840)). Butsee RCW 1.12.010 ("The provisions ofthis code shall be liberally construed, and shall not belimited by any rule ofstrict construction."). Requiring the State to allegethe victim was at least 12 years old would not further the announced legislativepurpose ofprotecting "the children ofWashington from sexual abuse." LAWS OF 1994, ch. 271, §§ 301- 07. We also conclude that the lower age limit does not needto betreated
as an elementundertheApprendi line ofcases. See 540 U.S. at 490. Second degree childmolestation is a class B felony and carries a lower presumptive sentence than first degree child molestation, a class A felony. RCW 9A.44.086, .083; RCW 9A.20.021(1)(a), (b). Itis not a fact that will increase the penalty the defendant faces. SeeAlleyne, 133 S. Ct. at 2160 (quotingApprendi, 530 U.S. at 490). 2. CLOSING ARGUMENr Next, we must decide whetherthetrial court violated Goss'sright to present a defense when it excluded argument thatthejurycould draw a

12State v. Goss, No. 92274-8 negative inference from the fact the State had not offered a recording ofa detective's interview with Goss. Briefly, the Statehad in its possession a 50 minute recording ofthe investigating detective's initial interview with Goss. Priorto trial, Goss moved to redactportions ofthe recording relating to pornography found on a computer seized from Goss's house and prior allegations ofchild molestationmade against him. The State indicated that it did not plan to playthe recording in its case in chief, and the trialjudge reserved ruling until and unless therecording was offered. Neither side moved to admit the recording, and it is not part ofthe record on appeal. Prior to closing arguments, the State moved to exclude any argument about the recorded statement. Goss opposedthe motion, arguing that he shouldbe able to point out that the State had evidence it did not present. The trial court concluded that the recording was "inadmissible
...hearsay and would onlybe admissible ifit was an admission offeredby a party opponent, andthe party opponent didn't offerit." 3 

### VTP (July 8, 2014) at 672. However, thetrial court did allow the defense to argue that "'[t]he detective spends 50 minutes with myclient and 10 minutes with so-and-so,' and things like that." !d. "Wereview the trial court's decision to limit closing argument for abuse ofdiscretion." State v. Wooten, 178 Wn.2d 890, 897, 312 P.3d

13State v. Goss, No. 92274-8 41(2013) (citing State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000)). "A court abuses its discretion 'onlyifno reasonable person would take the view adoptedbythe trial court."'!d. (quoting State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979)). While counsel has considerable latitude in closing argument, argument "mustberestricted to the facts in evidence and the applicable law, lestthejurybe confused ormisled." PerezCervantes, 141 Wn.2d at 474. Goss does not challenge the trialjudge's conclusion that the recording containedhearsay and does not contend that it contained anything helpful to him. Instead, he contends, since the State could have offeredthe tape under ER 801 ( d)(2), its failure to do so is analogous to a partynot offering a witness that is peculiarly available to it orto the State commenting on what a defendant who waives the right to silence does not say. Suppl. Br. ofPet'r at 17-18 (citing State v. Flora, 160 Wn. App. 549, 556, 249 P.3d 188 (2011); State v. Clark, 143 Wn.2d 731,765,24 P.3d 1006 (2001)). He argues that any errorwas not harmless because thejurymust have had doubts orit would nothave acquitted him ofattempted third degree child molestation. !d. at 20. Goss's analogy to the missing witness doctrine is not persuasive. Under that doctrine, '"where evidencewhich wouldproperlybepart ofa

14State v. Goss, No. 92274-8

case is within the control ofthe partywhose interest it would naturallybeto produce it, and,
...he fails to do so, -thejurymay draw an inference that it would beunfavorable to him."' State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991) (alteration in original) (quoting State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968), overruledon othergrounds by State v. Abdulle, 174 Wn.2d 411, 275 P.3d 1113 (2012)). Among otherthings, the doctrine applies '"onlywhere, under all the circumstances ofthe case, such unexplained failure to call the witnesses creates a suspicion that there has been a willful attempt to withhold competenttestimony."'!d. at 488 (quoting State v. Baker, 56 Wn.2d 846, 859-60, 355 P.2d 806 (1960)). Nothing here creates such a suspicion. Goss did not make an offer ofproof regarding the tape and in fact moved to redact portions relating to prior allegations ofchild molestation made against Goss byhis daughter. The detective who questioned Goss on the tape testified at trial. The State may well have concluded it was betterto present anyrelevant evidence through live testimonyratherthan a heavilyredacted recording ortranscript. The defense was allowed, over objection, to elicit from the detective that the interview was recorded. Nothing inthis record suggests the State's decision not to play the tape was nefarious. Goss has not shown the trial court abused its discretionbecause thetape was analogous to a missing witness.

15State v. Goss, No. 92274-8 Nor are wepersuadedthat the State's decision not to offerthe recordings is analogous to the State commenting on what a defendant who has waived the right to remain silent fails to say. Suppl. Br. ofPet'r at 18 (citing 

### Clark, 143 Wn.2d at 765). We find the trial court did not abuse its discretion. CONCLUSION We holdthatthe fact that the victim was "atleast twelve years old" is not an essential element ofsecond degree child molestation. We hold the trial court did not abuse its discretion inlimiting closing argument. Accordingly, we affirm.

16State v. Goss, No. 92274-8

WE CONCUR:

\

17